Makundi v Makundi & another (Environment and Land Case 764 of 2013) [2025] KEELC 5724 (KLR)
The bottom line
#A Kenyan court dismissed a man's bid to escape a contempt order, confirming you must obey court orders first and challenge them later.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application was filed without unreasonable delay
- 2.Whether the orders of 31st October 2024 (contempt finding and order of exhumation) should be reviewed, varied or set aside
- 3.Whether enforcement of the exhumation order should be suspended pending determination of the suit
- 4.Whether the suit should be transferred to the Environment and Land Court at Kitui
- 5.Whether the suit is not justiciable having been resolved by decisions of the Muusini Clan in 1999
Key legal issues
#Whether the delay of less than three months in filing the review application was sufficiently explained
The delay was sufficiently explained by the Applicant's documented ill-health and mental health treatment during 2024
The ruling sought to be reviewed was delivered on 31st October 2024 and the application was dated 21st January 2025, a delay of less than three months. Guided by the Court of Appeal decision in Stephen Githua Kimani v Nancy Wanjira Waruingi, the court held that although unexplained delays of even three months have been found unreasonable, the Applicant attached a progress report from his doctor showing he was seeking care for his mental well-being, which constituted sufficient explanation.
Whether the 1999 Muusini Clan decisions constituted new and important matter justifying review of the contempt and exhumation orders
No. The clan decisions were not new matter capable of supporting review; they were a defence to the contempt application, and the contempt order arose from an interlocutory application that did not determine ownership of the suit land
The court found the Applicant had not expressly stated the ground of review. Being represented by counsel since 2013 under the new constitutional dispensation, he was presumed aware of Article 159(2) of the Constitution. The disobeyed order was made pursuant to an interlocutory application, not a determination of ownership, and the Applicant would still have the opportunity to deploy the clan decisions at the hearing of the substantive suit.
Whether disobedience of the court order could be excused by the Applicant's belief in his own entitlement to the land
No. Court orders must be obeyed first, then challenged; willful disobedience is contempt regardless of the disobeying party's belief that the order was wrongly obtained
Relying on Hadkinson v Hadkinson and K.G.G.A v Francis Atwoli citing Clarke v Chadburn, the court reaffirmed the settled position that the plain obligation of every person against whom an order is made is to obey it unless and until it is discharged. The Applicant's remedy was to apply to vary or discharge the order, not to disobey it while asserting that the clan had allocated him the land.
Whether the Applicant's inability, on Kamba customary grounds, to carry out or procure the exhumation justified suspension of the order
No. The Applicant offered no explanation of how the contempt would be remedied if enforcement were suspended, and the court was not persuaded to suspend the order
The court noted the Applicant asked for suspension on grounds of lack of capacity arising from Kamba cultural taboos against exhumation, but pointed out that even a long-term suspension would not address the existing contempt. The parties were before court when the order was issued in the presence of his advocate, and the rule of law required obedience.
Legal principles established
#- A person against whom a court order is made must obey it unless and until it is discharged, and disobedience constitutes contempt even if the order is thought to be illegal or too wide
- Willful disobedience of a court order is punishable as contempt even if the defendant believed the injunction was improperly obtained; the remedy is to vary or discharge it
- The 'any other sufficient reason' ground of review need not be analogous with the other grounds in Order 45
- An application for review must be made without unreasonable delay, and even short delays call for explanation
Court orders
#- 1.The notice of motion dated 21st January 2025 is dismissed with costs to the Plaintiff/Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 129(2) of the Constitution; sections 1A and 3A of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
Relief refused
#Transfer of the suit to the Environment and Land Court at Kitui
Transfer can only be considered once the contempt and review questions are determined
Review, variation or setting aside of the orders of 31st October 2024 adjudging the 2nd Defendant guilty of contempt and requiring exhumation
No new and important matter discovered after due diligence; the clan decisions were a defence to contempt, not a ground for review; court orders must be obeyed until discharged
Suspension of enforcement of the exhumation order pending determination of the suit
Applicant offered no answer as to how contempt would be remedied if enforcement were suspended
Settlement of terms of the exhumation order and extension of time for compliance
Subsumed in the dismissal of the review and suspension prayers
Dismissal of the suit as not justiciable following the 1999 Muusini Clan decisions
The contempt order arose from an interlocutory application, not a determination of ownership; the clan evidence may still be used at the hearing
Costs
Costs of the application to the Plaintiff/Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It was the plain and unqualified obligation of every person against or in respect of whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged and disobedience of such an order would as a general rule result in the person disobeying it being in contempt
It is settled law that an order once issued must be obeyed however illegal it is and what was required of the Applicant was to obey the order first then apply for its review
willful disobedience to an order of the court is punishable as contempt of court even if the defendant thought that the injunction was improperly obtained or too wide in its terms, for that does not provide an excuse for disobeying it, the remedy is to vary or discharge it
The application dated 21st January 2025 is found to be without merit and is hereby dismissed with costs to the Plaintifi/ Respondent
Issues in the judgment
#The judgment refers to the order requiring exhumation of 'the remains of the 1st Defendant' although the 1st Defendant is described as the Applicant's father whose burial is in dispute, creating ambiguity as to party description
Inconsistent spelling of the same applicant's name across the judgment - 'Antony Malombe Mutemi' and 'Anthony Malombe Mutemi'
The Applicant's counsel is described both as present at delivery of the ruling (per the Plaintiff) and as the Applicant claiming ignorance of the court order after it was thrown over his fence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makundi v Makundi & another (Environment and Land Case 764 of 2013) [2025] KEELC 5724 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC suit filed in 2013; notice of motion dated 21st January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5724/eng@2025-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.